Boss’ “You should have _________ me” not harassment, court says

Fifty-eight-year-old Barbara Rader had some run-ins with her male supervisor in her new job with the federal immigration service in Orange County, but said she was finally getting good reviews from everyone until one day in September 2009, when the supervisor summoned her to the director’s office. On the way, Rader said, her boss told her, “You should have f***d me.”

Sure enough, when she arrived at the office, Rader was handed a letter saying she was being dismissed for having shown a “negative demeanor” and an “argumentative attitude” during her trial period as an immigration officer at U.S. Citizenship and Immigration Services.

Rader sued, claiming both sexual harassment and religious discrimination. She said the same supervisor repeatedly referred to Jews as “kikes,” though he did grant her request to schedule a day off for the Jewish holiday of Yom Kippur.

Rader’s supervisor said she was lying. But even if her accusations were truthful, a federal appeals court ruled this week, they didn’t amount to either harassment or discrimination.

An “isolated sexual comment” by Rader’s supervisor would not have been sexual harassment, said the Ninth U.S. Circuit Court of Appeals, because it came after the decision had already been made to dismiss her and wasn’t a demand for sex in exchange for keeping her job. And the alleged antisemitic slurs were “stray remarks (that) are insufficient to establish discrimination,” the court said.

Monday’s 2-1 ruling, upholding a federal judge’s decision to dismiss Rader’s suit without a trial, was issued by Judge N. Randy Smith and Chief Judge Alex Kozinski. In dissent, Judge Ronald Gould said the case should have gone to a jury.

The sexual remark, if it occurred, was “so offensive to the dignity of women working in a public office” that it could have shown the stated reason for Rader’s firing was a pretext, Gould said. He said a jury could have concluded that Rader might have kept her job “if she had performed or expressed a willingness to perform sexual favors.”

Likewise, Gould said, a jury could have found that anti-Jewish slurs in the office were evidence of prejudice against a Jewish employee, who was granted a day off for Yom Kippur but was fired before the holiday arrived.

Rader’s suit seeks damages and reinstatement to a job with the same agency but at another location. Her lawyer, Alan Yockelson, said he would ask the full appeals court for a rehearing.